FJN v JK, 2015 ABCA 353

fraser cja, Martin and slatter jja

4.22: Considerations for security for costs order
12.51: Appearance before the Court

Case Summary

The Defendant Appealed a Chambers Judge’s Decision to order interim child support, Security for Costs and Costs. The Defendant Appellant argued that the Chambers Judge had no jurisdiction to order child support until paternity was resolved, that the Chambers Judge erred in ordering Security for Costs without proper consideration of the relevant factors, and erred by awarding the Plaintiff Costs of an Application where the Defendant had been successful in the adjournment he sought.

The Court noted that when a Chambers Judge is asked to adjourn a hearing and put all matters over to Trial, the Chambers Judge is not limited to granting or denying the adjournment. There is a third option available and that is to allow the adjournment on conditions, which option is expressly contemplated in Rule 12.51.

The Court of Appeal reviewed the facts and the Family Law Act, RSA 2003, c F-4.5 and held that the Chambers Judge did not err in awarding interim child support, nor in awarding the Plaintiff Costs for an Application which ultimately was adjourned and put over to Trial. The Costs award was reasonable given the circumstances of the case, including that the Defendant refused to take a DNA test which would have been “decisive, conclusive and cheap”.

Finally, the Court noted that under Rule 4.22, a Court may order a party to provide security for payment of a Costs award if the Court considers it just and reasonable to do so. This rule is not limited to ordering a Plaintiff to give security; it applies to any “party”. A Court is to take into account certain considerations, including the merits of the Action and any other matter that the Court considers appropriate. The Court reviewed the circumstances of this case and concluded that the Security for Costs Order, while unusual, was justifiable.

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